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Section 97 of the Education Services for Overseas

Students Act 2000 (ESOS Act)

As announced by the Minister for Home Affairs, the Minister for Skills and Training, and the Minister for Education on 26 August 2023, the Australian Government has the power under Section 97 of the Education Services for Overseas Students (ESOS) Act to issue suspension certificates to education providers where they are considered to be bringing in students for a purpose not contemplated by their visa.

From 23 March 2024, new legislation under the Migration Regulations 1994 will support the Immigration Minister’s power under Section 97 of the ESOS Act.

Section 97 of the ESOS Act provides for the Minister to issue suspension certificates to education providers if, in the Minister’s opinion, a significant number of overseas students or intending overseas students are entering or remaining in Australia for purposes not contemplated by their visas.

This change is part of the package of reforms, released as part of the Australian Government’s Migration Strategy, and is designed to ensure only genuine student and education providers have access to Australia’s world class international education sector.

The new regulations further prescribe matters that the immigration minister may use when considering issuing a suspension certificate to an education provider. A provider’s score, amongst other factors, may determine whether a provider is considered for issue of a suspension certificate.

The reports that contain scores for education providers are generated each March and September and are based on 12 months of immigration outcomes.

In addition, the Minister may consider the following under s97 of the ESOS Act:

  • the number of applications for Student visas made by overseas students and intending overseas students that have been refused, based on fraudulent documents or information within the 12-month reporting period;
  • the number of the provider’s accepted students and former accepted students who have breached conditions of their visas within 12 months;
  • the number of accepted students and former accepted students of the registered provider who remain in Australia unlawfully after finishing their courses within 12 months; and
  • other matters set out in regulations made for this paragraph under the Migration Act 1958 and the Migration Regulations 1994.

Education providers being considered for issuance of a suspension certificate will receive a Notice of Intention to Consider Suspension, and have a minimum of seven days to provide a response, before the Minister decides whether or not to issue a suspension certificate.

Being issued with a suspension certificate means the provider would not be able to recruit any new international students for six months or while the suspension remains in place.

The new regulations commence from 23 March 2024.

The ESOS Act can be found at Federal Register of Legislation – Education Services for Overseas Students Act 2000 and a copy of the legislative instrument will be provided when published.

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